A bid to throw out a civil lawsuit brought by former Senator-At-Large Steven Payne was the subject of a hearing in Superior Court this week. The two-term lawmaker was ousted in July by a 14-1 vote taken by members of the 34th Legislature.
Superior Court Judge Renee Gumbs-Carty heard arguments from the legal teams representing Payne and one representing the Legislature. Through his attorney, Payne said the body violated its own rules in removing him from his seat. In a complaint filed July 28, co-plaintiff Noellise Powell said that as a voter, she was unduly deprived of the services provided by the candidate she voted for.
Defense attorney Joseph Arellano argued that even if the 34th Legislature broke its own rules, it would be wrong for the court to intervene. To do so would violate the separation of powers doctrine, a constitutional law.
The original motion to dismiss was filed on behalf of Sen. Donna Frett-Gregory, president of the 34th Legislature, in September.
Attorney Treston Moore, representing Payne at Tuesday’s hearing, said lawmakers can discipline a member, “but they cannot impose the ultimate discipline” of expulsion. In doing so, lawmakers disenfranchised the voters who elected Payne to serve in the 34th Legislature, Moore said.
He also questioned whether legislative rules allowed the body to expel a member at all.
At the time of his dismissal on July 20, the former senator-at-large faced allegations of sexual harassment against an employee of the Legislature, linked to a reported incident on Feb. 28. The matter was referred to the Legislature’s Ethics Committee in March. Then-Senate Vice President Novelle Francis Jr. and Kurrell Sheridan led the investigation.
“The investigation does not support a determination that the Sexual Harassment Policy of the Virgin Islands Legislature was violated,” the two officials said in their April 13 findings.
The complaint also stated, and Moore repeated at Tuesday’s motions hearing, that the alleged victim of the February incident was required to submit a sworn statement about the incident.
“The employee at issue did not follow the requirements of the Rules of the 34th Legislature of the Virgin Islands (‘Rule’) 810(h)(6), ‘that it must include a statement that the allegations are true of the person’s own knowledge or that the person believes them to be true and must be signed by the person under penalty of perjury.’ The employee declined to pursue the matter, did not cooperate with the initial investigation and has never, to the best of the Plaintiff’s knowledge and belief, sworn to those allegations.”
But Arellano stuck to his arguments, telling Gumbs-Carty that ruling on the motion to dismiss Payne’s complaint would set a dangerous precedent. Moore cited cases from jurisdictions across the U.S. where courts weighed in under similar circumstances.
The judge acknowledged the past practice of those courts. “There is precedence,” she said.
Gumbs-Carty also refuted Arellano’s claim that Payne should not be allowed to claim a violation of his constitutional rights. “You are saying he does not have the right to raise due process rights, and I don’t agree with you,” she said.
The plaintiff’s attorney added that his client was due compensation for the portion of his term he was barred from serving and that the July 20 expulsion interfered with Payne’s bid for reelection in the August Primary. Moore also suggested that any vote taken by Angel Bolques — his chosen successor who went on to win the seat in November’s General Election — that resulted in a win or loss by one vote should be invalidated.
The judge said she would take the arguments under consideration and would render a Memorandum and Opinion at a later date.
